Trump's most forceful executive order on immigration isn't the immigration ban

Protesters
gathered outside Terminal 4 at John F. Kennedy International
Airport on Saturday in opposition to President Donald Trump's
proposed ban on immigration.REUTERS/Stephen Yang

President Donald Trump
signed an executive order last Friday halting refugee
arrivals into the US for 120 days and barring citizens of Iraq,
Iran, Sudan, Libya, Somalia, Syria, and Yemen from entering the
US for 90 days.

The devil is in the details

Buried in the text of the earlier executive order is a section
that could have widespread implications for the enforcement of
immigration laws.

Take a look at Section 5:

"Sec. 5 Enforcement Priorities. In executing faithfully the
immigration laws of the United States, the Secretary of
Homeland Security (Secretary) shall prioritize for removal
those aliens described by the Congress ... as well as removable
aliens who:

"(a) Have been convicted of any criminal offense;

"(b) Have been charged with any criminal offense, where such
charge has not been resolved;

"(c) Have committed acts that constitute a chargeable criminal
offense;

"(d) Have engaged in fraud or willful misrepresentation in
connection with any official matter or application before a
governmental agency;

"(e) Have abused any program related to receipt of public
benefits;

"(f) Are subject to a final order of removal, but who have not
complied with their legal obligation to depart the United
States; or

"(g) In the judgment of an immigration officer, otherwise pose
a risk to public safety or national security."

Immigration lawyers whom Business Insider spoke with had two
major concerns regarding Section 5.

Protesters
at JFK airport in New York on Saturday.Associated Press/Craig Ruttle

The first concern is that Section 5 seems to go
beyond Trump’s suggestion during his campaign that, at least
initially, he would prioritize only immigrants charged with
crimes for deportation.

The section's repeated use of "any," Machado said, suggests that
all convictions, no matter how minor, could become cause to
"trigger an enforcement priority and the expenditure of
government resources for detainment and deportation."

Machado went on to describe Section 5 as creating "a federal
mandate to snare any and all convicts, no matter how small the
peccadillo."

The two agencies, Immigration and Customs Enforcement, known as
ICE, and US Customs and Border Protection, known as CBP, are
housed within the Department of Homeland Security. CBP enforces
immigration laws at the border, while ICE is responsible for
enforcing immigration laws and carrying out deportations.
Immigration advocates see both of those agencies' roles expanding
under Trump.

"Trump's new order is a go-get-'em-all approach,"
Stefanie Fisher, an immigration lawyer who is a partner at the
Boston-based firm Araujo & Fisher, told Business Insider.
"The goal now seems to be to arrest everyone."

Fisher's main concern, or what she called "the real danger," is
that increasing the number of those subject to deportation could
cause ICE and CBP officials to overlook people who pose genuine
threats to national security. For example, a person who was
charged with driving without a license could attract the
attention of officials who would otherwise be focusing on
identifying those engaged in terrorism or espionage.

Claude Arnold, a former ICE special agent who now works for
Frontier Solutions, a Virginia-based crisis-management firm, told
Business Insider that in his 27 years working as an ICE special
agent, resource allocation was "never an issue."

"Line-level employees want to go after the big fish," Arnold
added. "They have huge caseloads. They don't have time to just be
going out and arresting someone just because they're an illegal
alien."

Another factor that suggests immigration officers may not crack
down on minor offenses is detention space: There's only so much
room to hold people awaiting deportation, and Arnold said that if
officers were continually bringing in low-level offenders, those
offenders would "be kicked out of the backdoor."

The second concern immigration advocates share
is that Section 5, subsection (g), directs officials to
prioritize removing "aliens" who in "the judgment of an
immigration officer, otherwise pose a risk to public safety or
national security."

Immigration advocates are concerned that the language leaves the
decision of who is detained, admitted, or deported from the US up
to the judgment of ICE and customs officials.

"It's a very vague, very opaque rule that's likely to be
inconsistently applied," Reaz Jafri, an immigration lawyer who is
a partner at Withers Bergman and spent Saturday at John F.
Kennedy International Airport in New York working with those
affected by Trump's temporary immigration ban, told Business
Insider. "The decision to admit, or detain a person is in the
unchecked hands of customs officers."

The National ICE Council, a union representing ICE officials,
said in a statement that the Trump administration had
"empowered" the agency's officials to "allow law enforcement to
do its job."

"The men and women of ICE and Border Patrol will work tirelessly
to keep criminals, terrorists, and public safety threats out of
this country, which remains the number one target in the world —
and President Trump's actions now empower us to fulfill this life
saving mission, and it will indeed save thousands of lives and
billions of dollars,"
the union said.

A
woman greeting her mother after she arrived from Dubai on
Emirates Flight 203 at John F. Kennedy International Airport in
Queens, New York, on January 28.Andrew Kelly/Reuters

Jafri, however, took issue with the idea that customs officers,
most of whom have no legal training, be allowed to make those
decisions without oversight. Under the Obama administration,
Jafri said, customs officers applied a law with much stricter
precedents, guidelines, and regulations than those laid out in
Trump's executive action.

"Law enforcement need all their authorities available to be
productive," Arnold added. "All I see that this executive order
has done is restore discretion to the line-level agent or
officer, and leave it up to them to decide how to exercise their
authority."

It remains to be seen how or whether Trump’s executive action
will change the conduct of ICE and CBP officials. The sudden
rollout of Trump's immigration ban was heavily criticized as
being disorganized, with Jafri, for example, pointing to
confusion over how to treat those who held dual citizenship in
one of the countries affected by the ban.